Warne v Nolan

TORTS - NUISANCE - WHAT CONSTITUTES - PRIVATE NUISANCE IN GENERAL - defendants sought relief for damage allegedly caused by levee bank - whether levee bank constituted an unlawful interference with defendants' use and enjoyment of land - rights and obligations re free flowing surface water as between owners and occupiers of higher and lower lands

TORTS - NUISANCE - DEFENCE - GENERALY - whether defendants caused or contributed to any damage attributed to levee bank - whether defendants consented to or acquiesced in the alleged nuisance - whether person can recover for damages caused by the person's own acts

Property Law Act 1974, s 138

Bayliss v Lea [1961] NSWR 1002, referred to

Bell v Pitt [1956] TASStRp 23; [1956] Tas SR 161, referred to

Corbett v Pallas (1995) Aust Torts R 81-329; (1995) 86 LGERA 312, considered

Davey v Harrow Corporation [1958] 1 QB 60, referred to

Furness v Clarke (1971) 1 SASR 359, considered

Gardiner v Miller (1956) SR (NSW) 112, referred to

Gartner v Kidman [1962] HCA 27; (1961-2) 108 CLR 12, referred to

Goldman v Hargrave [1966] UKPC 2; [1967] 1 AC 645; (1966) 115 CLR 458, considered

Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40, considered

Harris v Carnegie's Pty Ltd [1916] ArgusLawRp 115; [1917] VLR 95, referred to

Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409, referred to

Hazelwood v Webber [1934] HCA 62; (1934) 52 CLR 268, referred to

Kraemer v Attorney-General [1966] TASStRp 15; (1966) TAS SR 113, referred to

Leakey v National Trust for Places of Historic Interest or Natural Beauty [1978] 1 QB 849, considered

Lyttelton Times Co Ltd v Warners Ltd [1907] UKPC 47; [1907] AC 476

Munro v Northern Dairies Ltd (1955) VLR 334-5, referred to

Nobel v Harrison [1926] 2 KB 332, referred to

Oldham v Lawson (No 1) [1976] VLR 654, considered

Precision Service Centre v Banstead (1985) 3 BPR 9626 [BC 8500 959], referred to

Pwllbach Colliery Company Ltd v Woodman [1915] AC 634, referred to

Radstock Co-operative and Industrial Society v Norton-Radstock Urban District Council [1968] Ch 605, not followed

Rex v Bell (1822) 1 LJKB (os) 42 and 39, referred to

Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768, referred to

Seddleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880, referred to

Torette House Pty Ltd v Berkman [1940] HCA 1; (1940) 62 CLR 637, referred to

Wilson v Waddell (1876) 2 AppCas 95, referred to

[1] The plaintiff, Mrs Maria Warne, owns the farm "Winya Park" at Warra. Its western boundary is the Warra - Cananga Creek Road and Haystack Lane, which runs east-west, divides it into parts referred to as Winya Park North and Winya Park South. Patrick Nolan and Cynthia Nolan own the farming property Corella located immediately to the north of Winya Park. Its southern boundary, as to part, is Haystack Lane and the northern boundary of Winya Park North as to the remainder. Winya Park North is located in Corella's south-west corner. The schedule to these reasons is a map identifying property boundaries and other relevant topographical features.

[2] Mrs Warne commenced this action seeking against Mr Nolan an order for recovery of possession of Winya Park, damages for trespass and, in the alternative, damages pursuant to s 138 of the Property Law Act 1974.

[3] It is common ground between the parties that -

(a) From about 1981 until the death of Mr Warne in 1990 the Nolans and the Warnes had a share farming arrangement under which the Nolans share farmed about half of Winya Park;

(b) After the death of Mr Warne, Mrs Warne and Mr Nolan agreed that Mr Nolan would carry out share farming on the whole of Winya Park;

(c) Mr Nolan carried out such share farming from between about 1990 and 1996;

(d) In or about July 1996 Mrs Warne gave oral notice to Mr Nolan requiring him to cease farming Winya Park at the conclusion of the harvest of the then standing wheat crop (expected to be harvested in November/December 1996), and after growing and harvesting a cotton crop then about to be planted on an area of approximately 88 acres;

(e) In December 1996 Mr Nolan told Mrs Warne that he refused to stop farming the property, or to vacate it, or to have his daughter and son-in-law vacate the house on Winya Park;

(f) By letter from Mrs Warne's solicitors dated 6 December 1996, Mrs Warne demanded vacant possession of Winya Park from Mr Nolan within seven days from the date of the letter;

(g) By a further letter from Mrs Warne's solicitors dated 20 December 1996, Mrs Warne demanded vacant possession of the property within seven days.

[4] In a defence delivered by Mr Nolan and a defence and counter-claim delivered by Mr and Mrs Nolan it was alleged that-

(a) The Nolans were entitled to possession of and to farm Winya Park until the expiration of reasonable notice;

(c) The Nolan's had an enforceable right of first refusal over Winya Park;

(d) A reasonable notice period is five years from the date of the last substantial expenditure by the Nolans.

[5] The Counterclaim made the following allegations concerning a levee bank on Winya Park -

(a) A levee bank constructed on Winya Park by Mrs Warne was not constructed in accordance with the requirements of Levee Bank Permit No. 66 issued by the Wambo Shire Council;

(b) The construction and maintenance of the levee bank is unlawful and has wrongfully caused surface water to be concentrated on and diverted onto Corella;

(c) Mrs Warne, at all material times, has been aware that the levee bank did not meet the requirements of the permit;

(d) The levee bank, by concentrating and diverting flow, caused significant additional water to flow onto, to accumulate on, and to increase the area, the depth and duration of inundation by water on Corella causing damage to Corella by waterlogging and soil erosion, the displacement and removal of soil, and the nutrients contained therein and by adversely affecting the quality of the remaining soil whereby the plaintiffs by counterclaim have suffered loss and damage;

(e) The loss and damage includes the cost of remedial work to be effected by the Nolans to an estimated cost of $215,650;

(f) Alternatively, the construction and maintenance of the levee bank was in breach of Mrs Warne's duty of care to the Nolans;

(g) The Nolans have suffered loss and damage and will continue to suffer loss and damage in consequence of the construction and maintenance of the levee bank;

(h) Losses through waterlogging of crops on Corella between the 1991/92 year and the 1996/97 year inclusive amounted to $193,500.

Mr Lennon QC, who appeared for the Nolans, made it plain that the reference in the pleading to "maintaining" the levee bank meant "permitting it to remain". It was not alleged that Mrs Warne intended to restore the levee bank in any way.

(a) An injunction restraining Mrs Warne from seeking possession of Winya Park prior to the expiration of a reasonable time;

(b) An order requiring Mrs Warne to remove the levee bank and to reinstate the area from which the levee is removed and its surrounds so as to prevent or minimise any future damage to Corella due to the construction of the levee bank or its removal;

(c) An order that Mrs Warne place topsoil on Corella so as to restore Corella to the levels and the contours it would have had but for the removal of its topsoil;

(d) Equitable damages in lieu of or in addition to injunctive relief;

(h) All necessary accounts, directions and inquiries.

The claim for negligence was abandoned early in the trial as were claims based on failure to comply with the conditions of the permits granted in respect of the levee bank and breaches of relevant statutory provisions. The Nolans' claims in respect of crop losses were abandoned when the trial re-commenced in June 2000 and all of Mrs Warne's claims were compromised in the course of the trial. As a result, the only matters left for determination are the Nolan's claims for injunctive relief in relation to the levee bank.

[7] Mrs Warne alleges that the levee bank was constructed prior to the purchase of Winya Park by Mr and Mrs Warne and that neither she nor her late husband undertook maintenance, improvement of, or extension to the levee bank, at any material time.

[8] In the course of the trial, Mrs Warne obtained leave to amend her defence to the counterclaim to allege -

(a) If the levee bank caused damage as alleged, Mr Nolan caused or contributed to such damage in that breaches in the levee bank were repaired and the height of the bank was, in part, increased by Brian Apelt at the direction of Mr Nolan on two occasions in or about 1993 and 1995;

(b) if Corella has suffered any damage as alleged, such damage was caused or contributed to by the actions of persons including Mr Nolan in that -

(i) Mr Apelt, at the direction of Mr Nolan, removed the fenceline and associated mound which separated Corella from Winya Park North;

(ii) Mr Apelt, at the direction of Mr Nolan, undertook "deep ripping" along the boundary of Corella, Winya Park North and Haystack Lane causing roots to be severed and thus increasing the potential for erosion;

(iii) Mr Nolan removed the boundary fence between Corella and the property immediately to Corella's north ("Taylor's"), which fence had proved an impediment to the ingress of water onto Corella from Taylor's property;

(iv) Mr Merker and others at the direction of Mr Nolan in or about 1989 cut a gap through Haystack Lane in the vicinity of the boundary of Winya Park South, Corella and the property to the east of Winya Park South ("Menzies") thereby affecting the direction and flow of water with the consequence that the area in the vicinity of the gap became eroded;

(v) Mr Nolan failed to grass or otherwise stabilise the headland area between the crop edge on Corella and Haystack Lane and the area of the gap referred to in the preceding sub-paragraph, thereby rendering those areas liable to erosion;

(vi) Mr Nolan, in undertaking dry land cotton cultivation and in establishing cultivation rows in a north-south direction, caused water to flow across Corella towards Haystack Lane rather than to drain from Corella through Merker's Crossing.

[9] It is further alleged in Mrs Warne's amended pleading that if the levee bank constitutes a nuisance as alleged then -

(a) The Nolans became aware of inundation on and the consequent damage to Corella, and the crops planted thereon no later than 1993;

(b) after than time, the Nolans believed that the levee bank caused or contributed to the inundation and its consequences;

(c) notwithstanding such belief, the Nolans continued to plant crops on Corella and Winya Park North;

(d) the Nolans did not notify Mrs Warne of the alleged nuisance or seek any rectification or remedial work until in or about December 1996;

(e) in the premises, the Nolans have consented to the nuisance and/or have thereby waived any entitlement to claim for any loss or damage.

[10] After the resumption of the trial in June, leave was given to join a second plaintiff by counterclaim, P S and C M Nolan & Co (a firm) and a third plaintiff by counterclaim Nolan & Co (a firm). The allegations in the counterclaim were amended by leave so that the allegations as to ownership and farming of Corella were that -

(a) between 1 July 1991 and 30 June 1995 the Nolans farmed Corella and carried out the share farming by or through P S and C M Nolan & Co, a partnership, the members of which were the Nolans on their own behalf and as trustees of the P S Nolan Family Trust trading as P S and C M Nolan & Co;

(b) between 1 July 1991 and 30 June 1996 the Nolans farmed Corella and carried out the share farming by themselves and as trustees of the P S Nolan Family Trust trading as P S and C M Nolan & Co;

(c) from 1 July 1996 the Nolans farmed Corella and caused to be carried out the share-farming by or through Nolan & Co a partnership between " P S Nolan Family Trust" (sic) and Eastern Capital Pty Ltd trading as Nolan & Co.

[11] The levee bank was in existence before the Warnes bought Winya Park in 1958. After that time they made various applications for approval for a levee bank on the site of the one already in existence.

[12] Permit 66 in respect of the levee bank was granted for a term of 5 years from 1 December 1960. A fresh permit was granted in January 1975 for a term expiring on 2 January 1985. The permit was renewed from time to time thereafter.

[13] A plan 637 dated 15/11/1961 was prepared in respect of the permit. There are substantial differences between the levee bank drawn on the plan and the levee bank as constructed. The total length of the bank at present is approximately 1,900 metres. For 1,300 metres it runs parallel to the northern boundary of Winya Park South and for 600 metres it runs parallel to the eastern boundary of Winya Park South. The east-west arm is between 2.5 and 15.5 metres from the property boundary and the north-south arm is approximately 178 metres from the eastern property boundary. The east-west bank is no more than .3 metres high for most of its length and in a number of isolated areas the bank has "local humps" which are up to .6 metres above the natural surface. These appear to have been caused by ants' nests. In other areas, the bank is about .08 metres high. It has also been breached in a number of areas where it has either been completely washed out or reduced to a few centimetres above natural ground level. In its present form, for most of its length, its top has been flattened or is gently rounded. Its sides are also weathered so that they are often gently sloping. The overall pattern of the angle of the bank's walls varies from place to place.

[14] The north-south section of the bank has been planted over by the Nolans with the result that it has been flattened to a degree. A substantial breach developed at the junction of the two arms of the levee bank in about 1998.

[15] The major differences between the levee, as it existed at relevant times and as approved, are as follows-

(a) The levee is 1,900 metres long compared with an approved length of 2,400 metres. The main reason for the discrepancy in length is that a section which the plan depicts as running south-west from the southern tip of the north-south arm of the levee bank was not constructed;

(b) it is located 178 metres from the eastern property boundary instead of 171 metres as approved;

(c) it is located between 2.5 and 15.5 metres from the northern boundary as opposed to 6.1 metres as approved;

(d) The permit envisaged that a drain approximately 2 metres wide and no more than 1 foot deep would be located on the exterior of the bank and that another shallow drain, 12 feet wide at its base, would run from the end of the north-south section of the levee bank.

At the time of trial, the levee was breached in at least seven locations and it was at its approved height of .3m only for about 40% of its total length.

[16] In his report of 19 October 1998, Mr Wylie, one of Mrs Warne's experts, noted that the levee was then breached in more than 10 places. A survey conducted on 21 January 1997 revealed two large and several smaller complete breaches. The survey though did not attempt to identify locations in which the bank, although not fully breached, was substantially reduced in height. Dr Loch, one of the Nolans' experts, notes the obvious degradation of the levee in his January 1999 report.

[17] Until his death in 1990 Mr Warne kept the levee bank repaired. After Mr Warne's death, Mrs Warne asked Mr Nolan to maintain the levee bank and he did so for some years. The first breaches of the levee bank not repaired by him, or by someone on his instructions, were those caused by flooding in May 1996.

[18] Mr Nolan first complained to Mrs Warne about the levee bank in around December 1996. That was some months after Mrs Warne had first sought to recover possession of Winya Park.

[19] Mr Nolan asked Mr Apelt on two occasions to repair the levee bank. On the first occasion, in 1991 Mr Apelt did a couple of hours work on the bank with a bulldozer. He recalled that the levee bank was breached in many places and generally in a bad state of repair. The second occasion was in 1993 when Mr Nolan asked him to check the levee bank. He did so and recalls repairing the bank in the vicinity of the gap in the treeline on Haystack Lane. Mr Nolan and his son also repaired the bank on other occasions between 1990 and October 1995.

[20] The road reserve of Haystack Lane, commencing at the east of the area under consideration, runs between properties described as Seigmeiers and Menzies. The former is on the north of the lane, the latter on the south. Approximately the northern fifth of Corella's eastern boundary adjoins the Taylor's farm. The rest of that eastern boundary divides Corella from Seigmeiers' property. To the south of the lane are Winya Park South and Menzies' property, the latter being to the east of Winya Park South. A few metres to the west of the north-east corner of Winya Park South is a gap in the tree line of Haystack Lane described in the course of evidence as "the gap in the trees" or "the congested area". The gap was cut in about 1984, by arrangement between the Warnes' farm manager and the Nolan's farm manager in order to facilitate the movement of machinery between Corella and Winya Park South. From about that time the Nolans cleared the gap of weeks with a cultivator. The frequency of that activity depended on the extent of weed growth, but, generally speaking, it was at least annual.

[21] Haystack Lane contains natural tree growth over most of its length. It is grassed in areas, bare in others and fallen trees and branches lie on the ground. The surface of the soil in the lane is lower than the surrounding land due to shrinkage of the soil resulting from water use by trees. The lane thus forms a natural drainage channel. Its hydraulic resistance is dependent on the nature and extent of the undergrowth at any given location and thus varies from season to season.

[22] A cleared area used for farm traffic has been left on Winya Park North and Corella between the cultivation and the tree line. Such areas were described in evidence as "headlands". A similar headland exists on Winya Park South on the southern side of the lane.

[23] The headlands are generally lower than the cultivated areas which they adjoin, the latter rising above natural ground level through the normal effects of cultivation. Over the years water has tended to flow east-west along the length of the headlands adjoining Haystack Lane in Corella and Winya Park North resulting in a depression or flow line, particularly to the north of the lane. The flow path to the west along Haystack Lane is interrupted as it approaches the Warra-Canaga Creek Road ("the Cananga road") by the wall of a dam constructed in the south-west corner of Winya Park North. It diverts the water flow in a channel which runs to the west of the dam wall, effectively truncating the south-west corner of Winya Park North. An alterative course for that water flow is to join water flowing down the lane to the south of the dam. The water diverted towards the north flows along Winya Park North's western headland to a point about half way up Winya Park's western boundary where it flows west across the Canaga Road through a depression known as "Merker's Crossing".

[24] The subject farms are located within extremely flat terrain on a brigalow flood plain The fall across the northern boundary of Corella from east to west is approximately 1.3 metres. The fall from east to west over the southern boundary of Corella and Winya Park North is about a metre. The falls along Corella's eastern and western boundaries are each less than a metre. I include in the latter reference the western boundary of Winya Park North.

[25] There are two slight ridges on Winya Park South. One is in the general area of the north-south levee bank. Its maximum height is 325.9m. Another, with a maximum height of 325.5m, is to the south of the east-west levee bank a little to the east of Winya Park North's south-eastern boundary. Reference will be made later to the affect of these topographical features on water flows. The water which flows across Corella has a catchment of some 6070 hectares.

[26] The water from the catchment, in times of flood, runs in a generally south-westerly direction across Corella and east-west from Seigmeiers to the north of Haystack Lane. Water also flows east-west from Menzies to the south of Haystack Lane. A drain along Seigmeier's eastern boundary diverts runoff to the south and assists in increasing an accumulation of water at the junction of the common boundary of Seigmeiers and Corella with Haystack Lane.

The Nolans' expert evidence relating to water flow

[27] The Nolans presented a veritable blizzard of expert evidence with a view to substantiating the allegations in the counterclaim. Mr Howell "assisted by Sidney W Dyer produced a `Report on the Effects of a Levee Bank on Flows Across' Corella". Mr Howell is a consulting engineer with expertise in hydrology. Mr Dyer has long experience in the field of agricultural irrigation. That report was accompanied by and relied on or referred to reports of Mr P Ridge, a consultant agronomist whose qualifications include B. Ag. Sc and Dip. Ag. Econ and reports of Dr Loch, a land management consultant whose qualifications include B. Agr. Sc, B.A. and a Ph.D in Resource Engineering. Dr Loch was employed by the Department of Primary Industries, Qld between 1972 and 1996. Mr Dyer and each of the expert witnesses also produced other reports.

The opinions of Mr Howell expressed in his 22 October 1999 report.

[28] When overland flows of water occur, the existence of the levee bank increases the depth of inundation for some considerable distance upstream, prolongs the duration of the inundation, and changes flow patterns and water velocities in a way that causes erosion. Water generally flows in the subject area in a south-westerly direction and is diverted by the east-west arm of the levee bank. If the water has nearly reached the larger dam at the western end of Haystack Lane, inadequate hydraulic conveyance between the dams and across the road in the vicinity of Haystack Lane forces the flow to turn north on the eastern side of the dam bank before scouring a channel and then crossing the road to the west.

[29] Flow channels from east-to-west have been either man-made or caused by human intervention. The east-west channel on Corella and Winya Park North to the north of the levee bank has been eroded because of the levee bank. The east-west channel immediately to the south of the levee bank was made originally by the excavation of soil to build the levee bank.

[30] The north-south portion of the levee bank interrupts the natural flow of water towards the south-west. Its interaction with an isolated ridge in the north-east corner of Winya Park South has the effect of diverting some of the flow to the north where it joins induced westward flowing water over Corella and Winya Park North upstream of the east-west levee bank.

[31] Inundation to the north of the levee bank persists for days longer than on similar country to the north-east and south.

[32] When asked why erosion had only recently been detected, despite the existence of the levee bank for 20 years, Mr Howell said -

"Now, the mechanism would seem to me to be this, there is some incipient erosion, barely detectable. As it continues, it provides channels which concentrate the flow more creating higher velocities which causes a higher rate of erosion and a higher and a higher and a higher rate. Sometimes we get so-called catastrophes where the mechanism of erosion switches from something gradual to something different. We can get high enough velocities to supercritical flow and a higher jump to form and then erosion takes place much more rapidly. ...

... It could well be that one particular extreme event triggers a change in the whole regime."

[33] He did not accept that for erosion to have become apparent only in the last few years, there must be some identifiable change in circumstances or triggering event. He said: "... the boundary is a fuzzy one, that it could well be just gradually increasing exponentially, that is to say being multiplied by a constant factor".

[34] Dr Loch states in his report dated January 1999 -

"The east-west levee bank not only diverts considerable amounts of overland flow in a westerly direction to an area of restricted discharge near the Warne homestead, but also sets potential flood levels for inundation of Winya Park North and Corella. The effectiveness of the levee bank in diverting flows has varied, depending on its state of repair."

[35] As to erosion, his views are summarised in the same report as follows -

"There is visible erosion on Corella on the northern edge of the tree line separating Corella and Winya Park South, at the south-western corner of Winya Park North, where overland flows move around the dam in a north-north-west direction, and within the tree line separating Corella and Winya Park South, to the west of the levee bank. For the first two locations in particular, erosion appears to have developed as a result of flow diversion and associated turbulence.

At this stage, the erosion does not impact on crop growth, being largely confined to areas of non-cropped headland and the line of trees on the Haystack Road reserve. However, the presence of concentrated flows and erosion along that area, has prompted Mr Nolan to avoid cropping the eroded area, leading to an increase in the width of headland and slightly reducing his area available for cropping.

Erosion at all three locations is of concern, as it demonstrates that lines of concentrated flow are occurring under the present conditions and that the concentrated flows are modifying the landscape to form incised flow lines."

In the same report of January 1999 he said in respect of Haystack Lane -

"... small flood flows could be expected to be diverted to the west by [the lane]. Larger flows could be expected to overlap this "drain" and to move in the south-westerly direction more generally consistent with topography of the area."

[36] Dr Loch, in oral evidence, concluded that, as the erosion was a relatively recent occurrence, it must have been caused by an intervening event in the last three to four years which was sufficient to start a chain reaction. The intervening event was said by him to be "a very large run off event" and that without it the mechanisms necessary to cause erosion may not have existed. According to him, the "intervening event" need not be a major flood as long as there was a significant flow of water in the area eroded. In his view, erosion in areas such as that under consideration, commences as a result of turbulence in a strong and relatively deep flow of water. He was of the opinion that turbulence would not occur naturally in water flowing north of the laneway and that the turbulence was a result of the diversion of water northwards by the north-south levee. He said that once an incised flow line had commenced it would, of itself, create turbulence and become "a self-propagating mechanism".

[37] Those opinions appear to differ from those of Mr Howell. Asked about whether flow of water through the gap on the trees contributed to the factor which caused the erosion in that vicinity, Mr Howell said - "I would attribute any erosion to flow along the Corella headland and perhaps flow down Haystack Lane from east to west".

[38] In relation to the breaches in the levee bank [the report notes that there were two large and several small breaches in the bank by 21 January 1997], Dr Loch says -

"The fact that runoff moves through breaks in the levee and continues south is indisputable evidence that the levee (when in good repair) represents a barrier to the normal movement of flood flows in a southerly direction. (If the levee had no effect on flood flows, it would be unlikely to overtop, and water would not move south in the way that it has) ...

Effectively, the levee ponds water in the road reserve and on Corella, with the ponded water then being slowly released to flow over Winya Park South. (Because the breaches in the levee are small, the rate of flow through them will be relatively slow). Therefore the period of inundation on Corella is being decreased while that on Winya Park South has been increased by the levee in its current (breached) form."

[39] Mrs Warne relies on reports by Mr McLatchey, Mr Abbey and Mr Wylie.

[40] Mr John McLatchey, formerly Senior District Adviser, Resources Management of the Department of Natural Resources, is a career officer with the Department whose qualifications include a Diploma in Agriculture from Queensland Agricultural College, and a certificate in extension from the University of Queensland. He is now a programme extension officer. Mr McLatchey, through his role as Departmental Adviser and his association with the Brigalow Land Care Committee, has had a long and active interest in water problems in the subject area.

[41] Mr Scott Abbey of Sinclair Knight Merz Pty Ltd is a civil engineer with 13 years experience in the hydrological area.

[42] Mr Peter Wylie of Horizon Rural Management is a consultant in farm business management, economics and agronomy. He has a degree in agricultural science and a master's degree in agricultural science.

[43] In a letter to Mrs Warne dated 26 August 1997, Mr McLatchey expressed the view that the levee bank did not cause or contribute to flooding, waterlogging or erosion on the Nolan's property.

[44] Mr McLatchey summarised his opinions as follows -

"a) The bank runs very closely to the flowline itself.

b) It is within the landscape that naturally contributes to that subcatchment.

c) Runoff accumulates on both sides of the bank to largely the same degree. Some variation to this would occur if runoff occurred only upstream of P. Nolan's property or conversely only on Mrs. Warne's property. ...

d) A ridge in Mrs Warne's property provides a sub-catchment boundary to the south of the zone in question. In many instances, this runoff is held on the south side of the bank and is diverted to the west. Debris can be seen along the top of the bank to confirm this.

e) Erosion damage to Mr Nolan's land starts at his boundary with Mr Seigmeier and runs parallel to the road reserve (tree-line) approximately 350 metres east of the start of Mrs Warne's bank. This is, by far, the worst of the damage.

f) The gully in Mr Nolan's farm largely disappears and silt is deposited after running parallel to Mrs Warne's bank for approximately 250 metres. (The bank is approximately 1400 metres long).

g) The bank has been breached from the north and the south.

h) Mr Nolan himself has repaired the bank during his time as share farmer with the belief he was protecting his own property and raised no objection to the re-licensing of the bank in 1996."

[45] Mr McLatchey listed the following factors as ones contributing to the accumulation of water and erosion on Corella -

"Direction of Farming and Planting. Because the land slope is less than .2% runoff is diverted easily in the direction of furrow, wheel tracks etc left by farming plant. Mr Nolan's practice of planting and cultivating in a north/south direction until the 1996/97 cotton crop contributed to the problem.

Farming Practices. Land levelling and cropping practices have significantly increased runoff and erosion. Cotton in particular increases runoff. After levelling of undulations and melonholes, special measures are required to reduce runoff and erosion.

Trees. A height difference in land surface has developed through the removal of trees on farms on both sides of the road reserve to allow farming and on the road reserve. The consequence is a "trough" in the position of the trees extending to the reach of their root zone. The trough results from moisture removal by the trees and moisture accumulation in the soil profile by farming.

Floods. Flood flows which exceed the capacity of Jandowae Creek and leave the Creek north of Haystack Road and which largely remain on the north side of the road exacerbate the problem.

Structures. A channel on the eastern side of Lot 14 on Plan LY 120 (Mr Seigmeier's property) directs runoff to the south where it meets with other accumulated runoff around the road reserve and then flows west. Headlands and fences in a north-south direction (the Nolan-Seigmeier boundary) divert runoff to the south. The headlands and fences running east-west on the northern side of Lot 157 LY 120 tend to divert runoff to the affected area. Netting fences along the road reserve (now discontinuous) tend to collect debris and act as barriers to water flow."

[46] In his oral evidence Mr McLatchey expressed the opinion that the erosion occurred as a result of the Nolan's farming practices. In particular, he referred to deep ripping, the clearing of the headland, vehicle wheel ruts along the headland and the Nolans' cropping practices. In his view, the cultivation of cotton north-south, rather than east-west, had increased waterflow and contributed to the erosion. I am not satisfied that the evidence establishes that deep ripping caused or contributed to the subject erosion.

[47] Some of Mr McLatchey's opinions on the direction and general nature of water flows over Corella were influenced by a mistaken understanding about the existence of a ridge line on Corella. That mistaken belief was shared by Mr Abbey and is later described. Because of this misconception, I have treated Mr McLatchey's views about water flows and the impact of the levee bank on waterflows with considerable caution. The fact that Mr McLatchey was shown to be mistaken by detailed surveys commissioned by the Nolans does not reflect adversely on his competence generally. He is very experienced in matters pertaining to flood plain management and I regarded him generally as a careful, competent and unbiased expert.

[48] In his July 1999 report Mr Abbey examined the impact of flooding in relation to the levee bank, having regard to two separate factual situations -

(a) on the basis of a levee bank in the form in which it was in July 1998;

(b) on the basis of a levee bank if constructed in accordance with the permit.

[49] On the factual basis in (a) it was concluded that no waterlogging would have taken place as a result of flooding in December 1993, or as a result of the two year ARI (Average Recurrence Interval) design event. The December 1993 flooding was one of the largest between 1991 and mid 1999. Consequently, any waterlogging on Corella due to the existing levee would have been highly unlikely.

[50] On the factual basis in (b) it was concluded that "the predicted waterlogging was such that impacts would be undetectable given the numerous other factors that can affect a crop".

[51] Mr Abbey's opinions were derived through the use of a hydraulic model which he devised to assist in predicting runoff rates and the extent and duration of inundation. The model, for the December 1993 event, predicted a maximum increase in the inundated area on Corella of 1.87 hectares due to the existing levee. That area is less than 1% of Corella's total land area. On the basis of a two year ARI, the maximum increase in the inundated area was determined at 1.11 hectares. The maximum duration of inundation for the cropped area on Corella was determined at -

The modelling shows only small differences in flood levels, velocities and areas of inundation between the situation which exists with the levee, and that which would exist in the absence of the levee. Mr Abbey concluded that conditions are such that if the levee was to be the primary cause of erosion, such erosion would most likely be located immediately adjacent to the structure. He found no evidence of significant erosion adjacent to the levee.

[52] The report identifies the factors exerting the major influence on flood flows in the area of Haystack Lane and its associated vegetation and treeline. It is said -

"The erosion identified is most likely caused by the edge of the treeline being higher than the adjacent headland. The ground levels at the edge of the treeline have built up due to silt being deposited at the interface between the grassed road reserve and the bare headland. This process in conjunction with the trafficking of the headland area causing wheel ruts and previous deep ripping along the edge of the treeline (to reduce the trees impact on crops) has lowered the levels in the headland and loosened the soil profile. The alteration in levels has resulted in flows being diverted by the treeline via the headland. ... runoff from the catchment upstream with Corella has been diverted in a western direction by roads and drains in the catchment and most of the flow in this area does not originate from Corella. The deep ripping of the headland and the trafficking of the bare surface during damp periods have promoted the existing erosion which has become significant after the deep ripping."

[53] On 6 August 1998, the Council wrote to Mrs Warne's then solicitors advising that for Mrs Warne's application for a levee bank permit to have a reasonable likelihood of success there would need to be certification by a registered professional engineer that -

". the existing levee bank works do not cause damage to other land owners; and

. to a higher level of certainty, the existing levee bank works will not cause damage to other land owners in the future."

[54] Mr Abbey was not prepared to provide such certification. In a letter of 28 September 1998 to the Council he wrote -

"Based on the investigations carried out it is concluded that:

* The existing levee will have a similar hydraulic impact on the floodplain as the levee bank currently licensed by Wambo Shire Council.

* The existing levee is unlikely to cause significant damage to other landholders when compared with the magnitude of drainages associated with flooding."

[55] Mr Abbey's conclusions in his first report were based on an assumption that there was a ridge line running roughly in a westerly direction across portion of Corella which deflected water flows north of that line to the west. He accepted that surveys done by Mr Larson on behalf of the Nolans revealed that the ridgeline did not exist. He also accepted evidence presented by the Nolans' experts as to the size of the catchment area and revised the size of the catchment from 1370 hectares to 6070 hectares. He accepted that water from the additional catchment, which was to the north of the area previously identified as a ridge line, could cross the area of the supposed ridge in times of flood. His modelling was based on the assumption that approximately five times the volume of floodwaters flowed through Corella from across its north-east boundary than through its south-east boundary. Nor did he make provision in his approach for the flow of water, from above the non-existent ridge line, to the south of Corella.

[56] After seeing reports and other data prepared and collected by the Nolans' experts, Mr Abbey altered his model and produced a report dated January 2000.

[57] In that report he concluded that in the December 1993 flood 75% of Corella would have been inundated had the levee not existed, that the existing levee had no affect on the size of the area inundated and that some 10.4 ha (or 3.7%) of Corella was inundated for a period of between 6 and 20 hours greater than would have been the case in the absence of the levee. In the case of a 2 year ARI 72 hour duration flood he concluded that some 1.2 ha (or .4%) of Corella would have been inundated for no longer than 9 hours more than would have been the case in the absence of the existing levee and that its presence did not increase the extent of the inundated area.

[58] He said that had he considered a plan of survey included in one of Mr Dyer's reports he may have formed the view that much greater amounts of water entered Corella from the south-east than he had previously thought. He also expressed the opinion that Mr Dyer's video recording provided good evidence of water flows and that the best evidence was informed observation on the ground. He had not had the opportunity of making such observations at times of flood.

[59] Mr Abbey expressed the opinions in his oral evidence that features such as the interface between the headland and the northern side of the treed area of the lane could operate on waterflows so as to cause erosion. He concluded that the existence of the levee on the flood plain served to increase flood levels in the region of the gap in the trees and in so doing would tend to cause a reduction in the rate of water flow in the vicinity of the gap at around times of flood peak. In his view, the erosion was probably the result of the runoff from upstream catchments being confined by plough banks, the fenceline and vegetation in Haystack Lane as well as the edge of the cropped area. He considered that there was a reasonably high potential for erosion in such circumstances.

[60] In the cross-examination, he conceded that the levee "does cause some damage on adjoining properties". He conceded also that the levee retarded water flows, caused a back up of water and thus an increase in flood level in the immediate vicinity of the levee, particularly in the area to the east of the Winya Park North boundary. He explained that the bank contributed to some of the damage that may have been caused "in various areas in the field near to it". In his view, the area of impact was limited to land in fairly close proximity to the levee because the levee was a relatively small structure hydraulically and it followed that any impacts resulting from it would be located near to it. As one moved away from the levee bank the hydraulics of the flood plain overcome any minor impact caused by the levee.

[61] Mr Abbey in re-examination explained what he meant by his references to "damage". He said that the levee may contribute to some sheet erosion in a cultivated area removed from the area of gully erosion in contention.

[62] I did not find Mr Abbey's evidence based on his modelling technique compelling. That technique was subjected to a number of criticisms by the Nolan's expert witnesses which, in my view, had substance. It, necessarily, was structured in a highly subjective way and depended for its validity on a number of assumptions made by Mr Abbey. I am not satisfied that all those assumptions were correct. Nor am I satisfied that the model was capable of plotting conditions on the ground except in a very broad way which provided only general conclusions in respect of water flow in the vicinity of the levee bank. It was not established to my satisfaction that the model, and in particular the system of "weirs" developed to control water flow, were based on accurate survey information or otherwise accurately represented actual water flows. Also the model was designed to show only general flow patterns. It provided little, if any, useful conclusions about the effect of the gap in the trees and other topographical features which may have had a significant impact on water flow.

[63] I nevertheless accept Mr Abbey as a competent hydrological engineer whose views are entitled to respect. He impressed me as being rather more practically orientated than Mr Howell, despite his reliance on his model. I also gained the impression that he was more objective and questioning in his approach than Mr Howell and Dr Loch.

* any impact on Corella caused by the degraded levee's interaction with flood waters is limited in nature;

* once the levee, in its degraded state, starts to overtop, its influence on flood flows is fairly minor and that once overtopped its impact would be comparable to the impact of the vegetation in the laneway; and

* the impact of the levee is lessened in proportion to the extent to which it is breached and otherwise reduced in height.

[65] Brian Apelt is an experienced contract farmer who worked for P S & C M Nolan & Co between February 1991 and January 1996 doing general farming work on Mr Nolan's two properties Kilkenny and Corella, as well as on Winya Park. His work required him to travel frequently through the farms and to observe the condition of the soil and the crops. As part of his role he made observations of locations, directions and the nature of water flows. In a flood in about March 1994, at the request of Mr Nolan, he assisted in draining areas on Corella and Winya Park by means of drainage channels formed by the depressions created by tractor tyres. He noted that the water was travelling generally in a south-westerly direction across Corella and across the northern part of Winya Park North towards Merker's Crossing. In the south of Corella he observed water travelling in a westerly direction on both sides of Haystack Lane. He noted also that water was flowing west on the south side of the levee bank in areas where the levee bank was breached. He reported observing a natural rise south of Haystack Lane and the east-west levee. He said that during the 1994 flood there was bad flooding on properties throughout the locality.

[66] He noticed that as the water from Seigmeiers flowed westward, it drained in part to the south through the gap in the trees on Haystack Lane.

[67] In the winter of 1993, Mr Apelt recalls that he and Mr Nolan conducted levelling operations on Winya Park North and Corella. As part of those operations, they levelled the small mound or rise which followed the old fenceline between Corella and Winya Park North. Before levelling, the earth in that area was generally some 25 to 30 cm above ground level, except that it was largely flattened over the southern third of the eastern boundary as a result of being cultivated over. On the northern boundary it flattened out over the last 100 to 150 metres as it approached the Cananga road.

[68] Mr Apelt had noticed that the northern mound diverted water flowing from the north-east along its line towards the road and that the eastern mound diverted water in a west-south-west direction. After the removal of the mound, more water from Corella flowed over Winya Park North and into the vicinity of the junction between the Cananga road and Haystack Lane. The water then took longer to drain from that area.

[69] In 1991/1992 Mr Taylor and Mr Nolan removed the dividing fence on the northern boundary of Corella. After the fence was removed, the fence mound was reduced by some 3 inches. This work reduced the ability of the fence mound to divert water along its line to the Cananga road. In a large flood more water overtops the fence mound than was previously the case.

[70] Concern about flood waters is not new in this area. In 1954, Mr Bebbington, a former owner of Corella, in a valuation objection, complained of flood waters being held back and banked up by the Cananga road.

[71] Mr Apelt noticed that there was deep ripping along the tree lines effected by Mr Nolan whilst he was employed on the Corella and Winya Park properties. He gave evidence that in 1993 he had placed modules of hydraulically compressed cotton about 50 metres to the north of Haystack Lane in the cultivated area about 10 metres in from the edge of the headland. Those areas, in his view, were not likely to experience flooding.

[72] Mr Apelt's recollection was that the 1994/95 cotton crop was an excellent one and that he had had discussions with Mr Nolan to that effect.

[73] He recalls also that there was a good average crop in 1994 and that he did not recall much "logging" of the sorghum crop. He said the 1993 crop was also a bumper crop.

[74] In his experience, areas which were inundated in wet weather tended to be better in dry times than other areas. That accorded also with the observations of Mr Taylor who said that he grew his best cotton where waterlogging occurred on the southern side of the ridge line which falls away to Corella.

[75] He said that his best ever year for a cotton crop was 1994/95 and that last five years have generally been good.

[76] Mr Nolan also gave evidence in relation to crop damage and other matters. Whilst I formed the view that Mr Nolan was attempting to provide accurate evidence, I concluded that his ability to be objective was affected adversely by his belief that the levee was causing considerable damage to Corella. He kept few relevant notes and I thought his recollection was generally unreliable. I accept the evidence of Mr Apelt and Mr Taylor which is referred to under the present and the previous headings.

[77] Mr Wylie of Horizon Rural Management expressed the following views -

* Even waterlogging for more than 48 hours will not necessarily affect the yield of dry land crops. Yields are commonly less than half the maximum potential yield and the effect of waterlogging may be "completely overshadowed by another limitation".

* It is common to see that the best yielding parts of a paddock are those which are in depressions where rain waters collect.

* Grain sorghum is particularly tolerant of waterlogging and can withstand flooding of up to seven days without significant loss of yield.

"From these reports of the effects of waterlogging on crops and on nitrogen losses from the soil, [a number of reports resulting from studies including recent ones of the central Darling Downs, Warra and Warwick] it is concluded that waterlogging has very little effect on dryland crop yields.

Rainfall which causes waterlogging is usually more beneficial than detrimental and it usually moves nitrogen in the soil down to a level where losses of nitrate are negligible.

It is not possible to extrapolate from irrigated crop situations, where restrictions to crop yields are largely eliminated by irrigation and the management of these irrigated crops."

[78] The Nolan's expert, Mr Ridge in four reports expressed the following opinions:

* Overland flow of water on most of Corella is retarded as a result of the influence of the levee bank.

* The retardation of the water extends the period of waterlogging by slowing overland flow.

* The slowing of overland flow increases the time available for surface water to move into and add to the water previously accumulated in the soil by direct infiltration of rainfall in the soil's upper layer.

* The area subject to waterlogging as a result of the interruptions to, and slowing of overland flow, will be much greater than the inundated area.

* The detrimental effects of waterlogging vary with the extent to which a crop is established. An established crop is less susceptible to waterlogging as it has an established root system operating (and drawing water from) below the waterlogged layer.

* Waterlogging when a crop is young and its roots are sensitive to waterlogging will limit its ultimate ability to explore the subsoil with a strong root system. In such circumstances, the damage can be irreversible and may occur within the first 48 hours of waterlogging.

* Three days of severe waterlogging will cause significant (about 30 per cent) yield loss, principally from induced nitrogen deficiency.

* The severity of the waterlogging on Corella would vary with the lie of the land on affected paddocks. Hollows and inundations would be the worst affected areas.

* The waterlogging problem on 70 per cent of the farmed area on Corella (70 per cent of 280 hectares being 200 hectares) has been exacerbated by the presence of the levee bank, increasing the affected area from 33 per cent prior to the construction of the levee to 80 per cent after construction.

* The presence of the levee bank extended the period of the waterlogging on the 33 per cent of the land originally subject to waterlogging.

* The loss of crop yield from three days of waterlogging is 30 per cent and the loss doubles if the waterlogging extends to six days.

[79] Mr Ridge gave his opinions as to the nature and extent of adverse affectation of Corella resulting from the levee bank on the assumption that the bank existed at its design height. It is apparent from the evidence of most, if not all the experts, that the influence of the levee bank on water flow depends on its efficacy as a weir. The evidence makes plain that the potential adverse impact of the levee at its design height is far greater than its potential impact in its degraded state. Consequently, such opinions of Mr Ridge are of limited value.

[80] Whilst having no reason to doubt Mr Ridge's expertise I formed the view that Mr Wylie had greater practical experience and knowledge in the areas of crop growth and damage through waterlogging. I preferred his opinions in this regard to those of Mr Ridge.

Factors which have affected water flow on Corella and Winya Park

[81] It is plain that a number of factors have operated to increase and otherwise affect water flows on Corella and the consequences of those water flows. The following list is not exhaustive.

1. The levelling of a ridge area on the boundary between Corella and Winya Park North in about 1993. The ridge had a tendency to divert water flowing from the north west out towards the Cananga road.

2. Land levelling conducted by the Nolans on Winya Park North and Corella which removed undulations and "melonholes" which had the capacity to retain and re-route water flows. Such activities are likely to haven taken place elsewhere in the catchment.

3. The removal of the fence on the boundary between the Taylor's property and Corella and the lowering of the fence mound by about 3 inches.

4. The blockage, in a property to the west of the Canaga road, of the across road drainage from the western end of Haystack Lane.

5. The clearing of the "gap in the trees" in Haystack Lane so as to provide an area of vehicular access between Winya Park North and Winya Park South, its use for farm traffic and the regular clearing of weeds from it by spraying and use of a cultivator.

6. Increased cultivation generally throughout the catchment.

7. The growing of cotton on Corella and Winya Park North has increased the moisture content of the soil and thus increased the potential for run off. The same phenomenon has occurred in other parts of the catchment and has resulted in a general increase in potential run off throughout the catchment.

8. The construction of drainage works in the vicinity of Corella and Winya Park such as the drain known as Seigmeier's drain.

9. Cultivating and cropping in a north-south direction on Corella until late in 1995.

10. Keeping the headland clear of vegetation and the regular movement over it of farm machinery which leave wheel ruts and other impressions.

11. The fact, reported by Mr Nolan and others, that the flow of water particularly to the north of the lane, over a great many years has produced something of a water channel in the headland to the north of the lane.

[82] Some of the above factors have increased water flow generally. Others serve to divert or concentrate it in various locations.

[83] In a letter dated 24 April 1997 to Mrs Warne, the Nolan's solicitors stated in relation to damage allegedly arising from the levee bank -

"The advice of our clients [sic] consultants is that the problem has built up imperceptibly but incrementally over the years. It has now reached a stage where there is actual damage being sustained to our clients [sic] property."

[84] Mr Lennon QC relied in particular on the following statement of principle by Priestley JA (with whose reasons the other members of the Court agreed) in Corbett v Pallas - [1]

"1. Where the nuisance alleged is damage caused by water entering the plaintiff's land it is sufficient in order to establish a prima facie case for the plaintiff to allege and prove that material damage to his property has resulted from an increase in the flow or percolation of surface water due to the defendant's act in altering the conformation of land in the course of the defendant's use of it.

2. It is not for the plaintiff to allege or prove unnatural or unreasonable use of the land by the defendant.

3. So far as the conformation of the land is altered in the course of some specific use which may avoid liability, the burden of proof is on the defendant to allege and establish it as a distinct defence.

4. Unreasonable use is not an ingredient of the cause of action but certain types of user may amount to a `natural' and reasonable user of the land and afford a defence.

5. Whether a particular user of land is `natural' must be determined reasonably having regard to all the circumstances, including the purpose for which the land is being used and the manner in which the flow of water was increased."

[85] Corbett v Pallas concerned the liability of a proprietor of higher land arising from the construction of an above ground swimming pool which diverted and concentrated storm water with the result that it penetrated the side wall of the home of the adjoining downhill proprietor and accumulated thereunder. It is thus of benefit for present purposes only in as much as it discusses general principles.

[86] The principles relating to rights and obligations in respect of free flowing surface water were summarised as follows by Windeyer J, with whose reasons Dixon CJ agreed, in Gartner v Kidman [2]-

"The higher proprietor: He is not liable merely because surface water flows naturally from his land on to lower land.

He may be liable if such water is caused to flow in a more concentrated form than it naturally would.

It flows in a more concentrated form than it naturally would if, by the discernible work of man, the levels or conformations of land have been altered, and as a result the flow of surface water is increased at any particular point.

If a more concentrated flow occurs simply as the result of the `natural' use of his land by the higher proprietor, he is, generally speaking, not liable. What is a natural use is a question to be determined reasonably having regard to all the circumstances, including the purposes for which the land is being used and the manner in which the flow of water was increased: as for example whether it is agricultural land drained in the ordinary course of agriculture, whether it is timbered land cleared for grazing, whether it is a mining tenement, or is used for buildings and so forth. ...

The lower proprietor: He may recover damages from, or in appropriate cases obtain an injunction against, the proprietor of the higher land who is, for any of the reasons given above, liable to an action because he has concentrated or altered the natural flow.

Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances. It may be added that the proprietor's right to defend his land against water coming upon it by erecting barriers, is generally speaking restricted to penning it back on to the higher land whence it would otherwise have naturally come. It does not entitle him to divert it on to the land of a third proprietor to which it would not have naturally gone to the damage of that proprietor."

[87] Mr Perry did not seek to argue that Mrs Warne had the right to turn back the Nolan's water onto their land, no doubt because of Mr McLatchey's opinion that the levee bank conferred no benefit on Winya Park South.

[88] Nuisance is an `unlawful interference with a person's use or enjoyment of land, or of some right over it, or in connection with it'.[3]

[89] To establish nuisance a plaintiff must show a substantial degree of interference with the plaintiff's enjoyment of the use of (the land) and the existence of damage, except where damage is presumed by law to exist.[4] What constitutes such a substantial degree of interference is to be decided according to what are reasonable standards for the enjoyment of the premises concerned.[5] Duration of the interference is a relevant consideration[6] but a short lived interference may be regarded as substantial if it causes permanent damage to land.[7]

[90] In Furness v Clark,[8] Bray CJ, with whose reasons Sangster AJ agreed, said in respect of a claim by a higher land owner for nuisance against a lower _

"I think that if the plaintiff shows an injury to his land from the operation of the defendant on his land then he has made out a prima-facie case of nuisance and the onus passes to the defendant `to establish some appropriate defence'."

[91] There is a general principle of law that an owner of land cannot complain of damage caused through the natural user of land by a neighbouring owner.[9]

[92] Consistently with this principle, the owner of a farm is entitled to establish a reasonable system of drainage on that farm for the purposes of improved husbandry, and the owner of a lower lying property which, in consequence, receives an increased concentration and quantity of water has no cause of action.[10]

[93] Mr Perry, in my view soundly, did not argue that the construction and maintenance of the levee bank constituted a non-actionable natural user of Mrs Warne's land.

[94] Liability may arise out of the continuation or adoption of a nuisance where a person fails to remedy the nuisance without undue delay after having become aware of it.[11] Liability is not limited to the mere creation of a nuisance and extends to leaving a nuisance on the land.[12]

[95] Mr Perry argued that even if the levee bank began to constitute a nuisance at a relevant time it was not a nuisance when constructed or for most of its existence. The fact that the levee bank was not a nuisance until comparatively recent times was conceded by Mr Lennon. Mr Perry submitted, in reliance on Radstock Co-operative and Industrial Society v Norton-Radstock Urban District Council[13]; Rex v Bell[14]; and Halsbury's Laws of England,[15] that notwithstanding the general principles referred to above, something which begins by not being a nuisance can not grow to be one by mere lapse of time.

[96] Radstock was a case in which the defendant council laid a sewer in a riverbed. The sewer was properly laid and maintained and caused no difficulty for many years. By reason of natural forces or acts of a third party further up the river the flow of water in the river increased. This resulted in erosion of the river bed, exposing the sewer which then caused turbulence damaging a bridge and other property of the plaintiff. It was held by a majority that the defendant was not liable. In the course of his reasons Harman L.J.[16] approved the statement in Halsbury's Laws of England[17] saying -

"... something which begins by not being a nuisance can not grow to be one by mere lapse of time, and appears to bear out that statement, which seems to me, apart from authority, to be right."

"... the plaintiffs have no right to complain of a state of things which has existed before and ever since they came into possession in 1915 and has never been altered by the defendants or anyone for whom they are responsible. I would, therefore, hold that the plea of nuisance is bad."

[98] O'Connor J in Leakey v National Trust for Places of Historic Interest or Natural Beauty[19] declined to follow Radstock on the basis that it was inconsistent with the Court of Appeal decision in Davey v Harrow Corporation[20] and the decision of the Privy Council in Goldman v Hargrave[21]. An appeal from his decision was dismissed.[22] In Leakey, the plaintiffs' houses were built at the foot of a large mound on the defendant's land. The mound was unstable and over the years rock and soil fell from it onto the plaintiffs' land. As a result of unusually severe climatic conditions a large crack opened in the mound above the houses creating an obvious risk of a major fall. When the condition was drawn to the defendant's attention, it denied responsibility on the basis that any fall would result from a natural movement of the land.

[99] It was held at first instance, and on appeal, that an occupier of land had a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land whether the hazard was natural or man made. The duty was to take all such steps as were reasonable in the circumstances to prevent or minimise the risk of injury or damage to the neighbour or his property of which the occupier knew or ought to have known.

[100] Goldman v Hargrave was an appeal from the decision of the High Court in Hargrave v Goldman.[23] In that case a large tree on the defendant's land was struck by lightning and caught fire. With a view to removing the risk of fire spreading, the defendant cleared around the tree, cut it down and sawed it into sections. When this work was completed burning parts of the tree lay on the ground and, as a result of hot weather and strong winds, the fire continued to burn and then spread through the defendant's land to neighbouring properties. The defendant, in the High Court, was found liable in both negligence and nuisance. Taylor and Owen JJ, after observing that after the tree was cut down a hazard of a different character was created and the defendant became under a duty to take reasonable care to prevent it causing damage to his neighbours, concluded that it was of no consequence whether the defendant's liability rested in negligence or nuisance. They approved the following passage from the 5th ed (1920) of Salmond on Law of Torts [24] -

"When a nuisance has been created by the act of a trespasser, or otherwise without the act, authority, or permission of the occupier, the occupier is not responsible for that nuisance unless, with knowledge or means of knowledge of its existence, he suffers it to continue without taking reasonably prompt and efficient means for its abatement."

[101] They then referred, with apparent approval, to the following proposition stated by Rowlatt J in Noble v Harrison[25] -

"The result... is that a person is liable for a nuisance constituted by the state of the property: (a) if he causes it; (b) if by the neglect of some duty he allowed it to arise; (c) if, when it has arisen without his own act or default, he omits to remedy it within reasonable time after he did or ought to have to become aware of it."

(The dictum of Rowlatt J was also cited with apparent approval by Dixon J in Torette House Pty Ltd v Berkman.[26])

[102] Windeyer J agreed with the conclusions of Taylor and Owen JJ but gave his own reasons.

[103] On appeal from the High Court, the Privy Council rejected the contention that a different principle applied depending on whether the subject hazard was one brought about by human agency or act of God. Lord Wilberforce, who delivered the judgment of the Board, observed[27] -

"Within the class of situations in which the occupier is himself without responsibility for the origin of the fire, one may ask in vain what relevant different there is between a fire caused by a human agency such as a trespasser and one caused by act of God or nature. A difference in degree - as to the potency of the agency - one can see but none that is in principle relevant to the occupier's duty to act. It was suggested as logical basis for the distinction that in the case of a hazard originating in act of man, an occupier who fails to deal with it can be said to be using his land in a manner detrimental to his neighbour and so to be within the classical field of responsibility in nuisance, whereas this can not be said when the hazard originates without human action so long at least as the occupier merely abstains. The fallacy of this argument is that, as already explained, the basis of the occupier's liability lies not in the use of his land: in the absence of `adoption' there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant."

[104] Furness v Clarke [28] provides another illustration of something being held to be a nuisance notwithstanding the fact that it was originally non-actionable. In the context of a defendant having interfered with natural drainage by partially filling a "runaway hole" and erecting a bank to affect water flow, Chamberlain J expressed the view that -

"... a situation which was originally justified as a reasonable measure of protection may become unreasonable in changed circumstances, and its maintenance may therefore become actionable" [as a nuisance].

[105] The judgment was not reversed on appeal. None of the members of the Court on appeal found it necessary to discuss the question of whether changing circumstances could convert a non-actionable state of affairs into one given rise to a claim for nuisance.

[106] It is plain from the foregoing that the proposition expressed in Radstock Co-operative and Industrial Society on which the plaintiff relies is not sound in law. It is inconsistent with expressions of principle in decisions at first instance and in the Court of Appeal (UK), Privy Council and High Court. The mere fact that the levee bank was not a nuisance when constructed, did not prevent it from becoming one as a result of changes in natural conditions and other causes.

[107] The defences of consent and assumption of risk are applicable to nuisance[29] and Mr Perry argued that the Nolans had consented to the levee bank and any nuisance constituted thereby.

[108] Consent is a question of fact. It may be expressed or implied from a course of conduct.

[109] In Pwllbach Colliery Co Ltd v Woodman [30], Lord Loreburn said at 638 -

"Their duty to their neighbour is not merely to take care so as to avoid causing a nuisance. Their duty is to abstain from causing one at all, unless, of course, they have a right to cause one, as, for example, by statute or by consent of the complaining party or of someone whose consent binds him. Such consent may be proved like any other question of fact. It may appear from the conduct of the parties and the surrounding circumstances, as in Hall v Lund [1863] EngR 133; 1 H. & C. 676 or as in Lyttelton Times Co. v. Warners [1907] UKPC 47; [1907] A.C. 476, where both parties agreed that the very thing which was done should be done, though neither of them expected that it would cause a nuisance. It is a question of fact, ..."

[110] In Lyttelton, the appellants and respondents agreed that on the re-building of the appellants' printing house the respondents would rent the upper floors for use as bedrooms for their adjoining hotel. The appellants were to have their printing works on the ground floor and it was believed that the machinery could be operated so as not to disturb the hotel guests. It turned out otherwise and the respondents claimed negligence. They failed. Lord Loreburn, who delivered the judgment of the Board said, at 481 -

"In this case their Lordships think that both parties agreed upon a building scheme with the intention that the building should be used for bedrooms and also for a printing house according to a design agreed upon. Both parties believed these two uses could co-exist without clashing, and that was why both of them accepted the scheme. Neither would have embarked upon it if he had not thought his intended enjoyment of the building would be permitted, and both intended that the other should enjoy the building in the way contemplated. They were mistaken in their anticipation. But if it be true that neither has done or asks to do anything which was not contemplated by both, neither can have any right against the other."

[111] It is also the case that a plaintiff may not claim in respect of an alleged wrong if the plaintiff was the cause of his or her own injury.[31]

The allegations that the erosion in the vicinity of the gap in the trees was caused by the levee bank

[112] The Nolans relied on two matters in attempting to show that the levee was causing a substantial degree of interference with their enjoyment of Corella. They were the gully erosion in the vicinity of the gap in the trees and damage to crops through waterlogging. I will discuss each of these key elements of the Nolans' case in turn.

[113] The matters listed in paragraph [81] show that the nature and extent of water flows in the vicinity of the levee bank have been and continue to be affected by a considerable number of interacting factors. However, the Nolans, through their experts, Mr Howell and Dr Loch, seek to attribute the onset and continuance of the erosion to the existence of the levee bank and, in particular, its north-south arm. The reasoning of Dr Loch is essentially this. The terrain in the vicinity of the eroded area is extremely flat. Because of this, water flowing over it is unlikely to cause erosion and water flow, in fact, caused no erosion for many years. Noticeable erosion first appeared in 1995. Because the sub-surface layer is relatively firm and not prone to erosion something more than normal water flow must have triggered the erosion. That additional feature was a larger than usual flood event which resulted in deeper and stronger flows from the east along the channel to the north of the lane combined with turbulence created where such flows met water diverted to the north by the north south levee.

[114] Mr Howell, in a report of October 1999 expressed the rather general opinion that the erosion was caused by water flowing at high velocity which imposed high stresses on the soil. He said that erosion was caused by high turbulence levels associated with abrupt changes in direction. The high velocity flows were in identified by him as those from east to west to the north of Haystack Lane.

[115] It is quite likely that a factor or factors absent or not operative in whole or in part in the past acted, in conjunction with a variety of things, to cause the onset of erosion. However, I am unable to accept that, on the balance of probabilities, Dr Loch's explanation is the correct one. It is impossible, in my view, to separate out Dr Loch's preferred cause from the multitude of other factors which operated at relevant times on water flow in the subject area. These observations are generally applicable to Mr Howell's opinions also.

[116] It was accepted by all experts that the direction and force of water flow in particular locations would vary depending on the nature and extent of rainfall and ground flows within the catchment area. Movement of water depends on water levels and water may flow in different directions at different stages of a flood event. There is no evidence to suggest that, at the time the erosion commenced, water was diverted to the north by the north-south arm of the levee bank to any greater extent than it had been in the past. Nor is it possible on the evidence to determine whether or not there was an unusually strong flow of water east-west along the line of Haystack Lane which may have increased or varied the forces on the soil in the vicinity of the gap in the trees beyond those applying in some previous flood events.

[117] I can see no convincing reason to conclude that the cause of the erosion commenced suddenly in the way Dr Loch opined rather than originating, for example, from soil disturbed by the impact of vehicle wheels or agricultural machinery. Over a period of time, as a result of water flow, the surface soil may have become dislodged to a sufficient extent to cause turbulence and start the chain reaction spoken of by Dr Loch. As Dr Loch himself acknowledged, the conditions for continuing erosion to occur can be present in the land for many years before a triggering event takes place. The channel in the Corella headland in which the erosion occurred was well established by the time the erosion commenced and was being progressively enlarged. Moreover, there was an increase in the runoff in the catchment and thus in the volume of water carried by the channel. There was also an increase in runoff from Corella. The headland was kept reasonably clear of plant growth and was trafficked in wet and dry conditions by farm machinery. In these circumstances, I can see no compelling force in the opinions advanced by the Nolans' experts. Their approach, unrealistically in my view, tends to ignore conditions which had existed for years or built up over time.

[118] Mr Abbey was of the opinion that where the north-south levee has it greatest impact on water flows, it probably has the effect of flattening out the hydraulic gradient and reducing water velocities. Because of that, in his opinion, the erosion was probably caused by the first run off from upstream catchments being confined by plough banks, the fence line and vegetation in Haystack Lane as well as the edge of the cropped area in Corella. I refer to Mr Abbey's opinion in order to show the existence of a credible expert opinion on the cause of the erosion which differs from those of Mr Howell and Dr Loch. Mr McLatchey's views, also credible, are summarised in paragraph [46].

[119] Another difficulty facing the plaintiff is that no erosion of significance was observed until the last three months of 1995. Mr Nolan's evidence is that the erosion got progressively worse from then until the 1998 floods. He started paying careful attention to water flows during and after a major flood at the end of 1995. Prior to that event the levee had been repaired from time to time. It was not repaired after the 1995 flood when it was breached in a number of places and, I infer that it was otherwise degraded. It became further breached and eroded in various places with each consecutive flood. Mr Nolan said that the levee bank went to pieces rapidly in May 1996 and I accept that this was so. Its effect on water flows on Corella diminished as it's degradation increased.

[120] It was not until about December 1996 that Mr Nolan first complained to Mrs Warne about the levee bank. Without the repairs by the Nolans since Mr Warne's death in 1990, the likelihood is that between 1990 and October 1995, when Mr Nolan first noticed the erosion, the levee bank would have become substantially more degraded than it was at the time of trial. It was already breached and in need of repair by the time of Mr Warne's death in 1990. Even if, contrary to my conclusions, the levee bank should be considered as the cause of the onset of erosion at the end of 1995 and its continuance thereafter, it is impossible to say that such erosion would have occurred even if the bank had not been progressively repaired by the Nolans.

[121] There are other complicating factors. The north-south arm of the levee bank sits on a ridge capable, of itself, of diverting water. That ridge and the levee bank diverts water flowing from the east and north-east both to the south and north, depending on the size and phase of a flood event. The evidence is not such as to permit a finding that the diversion of water to the north which created the turbulence relied on by Dr Loch (assuming the existence of such turbulence for present purposes) was caused by the levee bank rather than the natural topographical feature. Nor is it obvious to me why, if turbulence existed in the place where erosion started, it could not have been caused by water flowing from the north or north-east meeting the westward flowing channel.

[122] The role of the gap in the trees in the mechanisms spoken of by Dr Loch and Mr Howell is unclear. Absent the gap, the northward flow of water may not have occurred, at least in such a way as to cause the turbulence which, in the view of Dr Loch, facilitated the erosion. Yet the Nolans (together with Mr Warne) were instrumental in creating the gap in the first place. The Nolans have maintained the gap as an effective water conduit since about the mid 1980s. I infer that the gap was cut by Mr Nolan and or an employee of the Nolans. An employee of the Warnes may have assisted. For the reasons advanced earlier, the Nolans cannot complain about a nuisance they themselves have created.

The allegations that there was crop damage caused by the levee bank

[123] Paragraph 27 of the counterclaim, the effect of which is set out in paragraph [5] above, alleges that the levee bank increases the area, depth and duration of water inundation on Corella and causes damage to Corella "by waterlogging and the displacement and removal of soil and the nutrients contained therein and by adversely affecting the quality of the remaining soil" causing the Nolans to suffer loss and damage. The case sought to be made out in evidence and in submissions was limited to crop damage by waterlogging.

[124] Mr Nolan gave evidence of damage to a cotton crop planted in November 1994 and to another crop planted in October 1996. He did not complain of any damage to the wheat crops planted in 1997 and 1998 or to a cotton crop planted in October 1999.

[125] I am not persuaded that any material loss resulted to the 1994 cotton crop from the matters complained of by the Nolans. Mr Taylor's comparable crop was extremely good. Mr Nolan extolled the virtues of his crop to Mr Apelt and Mr Apelt's own observations were that the crop was an excellent one.

[126] In relation to the October 1996 crop Mr Nolan complained that the crop yellowed for about six weeks, that it had an unhealthy look and a shallow root structure. Mr Nolan however did not attempt, in his evidence, to identify any discrete areas on Corella within which this phenomenon was observed. The impression I got was that this condition was not limited to the areas on Corella within reasonable proximity to its southern boundary or which were likely to have experienced some longer inundation through the influence of the levee bank. He refers in his statement dated 8 May 2000 to large parts of Corella having been affected. Yet Mr Nolan's own evidence is that in 1996/7 a lesser yield was obtained on the northern side of the Corella tree line, an area quite unaffected by any alteration of water flows brought about by the presence of the levee Referring to the 1994 cotton crop he recalled that "almost all the surface" of Corella was under water in February 1995 and that it was several days before the water drained. Again Mr Nolan does not appear to have noticed that the crop in areas likely to be affected most by the levee suffered any more or less than any other part of the crop.

[127] If some minor localised damage was caused to part of a crop by waterlogging as a consequence of the influence of the levee it does not follow that the overall influence of the levee was detrimental. Mr Apelt's opinion was that wetter areas were better for crop growth in dry times than other areas. Mr Taylor's experience was that his best cotton was grown in areas where there was "reasonable waterlogging." Mr McLatchey was also of the view that areas which were more prone to inundation than others could be better for crop growth in flood plain areas. Mr Wylie's evidence also cast doubt on the notion that the creation of areas on a dry land farm which ponded or became more subject to inundation in flood conditions was necessarily detrimental. In reliance on this evidence, I accept that if inundation on Corella may cause crop damage in a particular flood event, for example, as a result of inundation of a water susceptible crop at an early stage of its development, such ill effects are likely to be balanced out over time by the benefits bestowed by additional water retention.

[128] There is also the evidence of Mr Wylie that the 1998 wheat crops on Corella and Winya Park showed no sign of differential growth or quality as a result of, inundation, despite that being a wet year. That evidence was not contradicted by Mr Ridge and it says something in general terms about the scale of the problem, if any, resulting from the presence of the levee bank.

[129] The Nolans have thus failed to establish any damage to crops resulting from inundation caused or prolonged by the levee bank.

[130] It is the case though, that the levee bank, even in the degraded form it was in 1996, 1997 and 1998, caused inundation on parts of Corella to be prolonged. It is impossible, however, to be precise about the duration of that prolongation or as to the extent of the affected area. Mr Abbey concluded in his January 2000 report that, for all of the flood events considered by him, about 80 percent of Corella would have been inundated even in the absence of the levee. Consequently, in such cases, the levee would have had no impact on the area of inundation. He concluded that the maximum increase in the duration of inundation on any part of Corella in the case of a flood similar in nature to the February 1999 flood would be less than 6 hours.

[131] In the case of a levee constructed to its design height, he was of the opinion that, for such a flood event, the maximum prolongation would be 14 hours. He concluded that any increases in the duration of inundation exceeding 6 hours would be limited to a 7.8 ha area adjacent to the levee and extending north into Corella to a distance of about 180 metres.

[132] The calculations in Mr Abbey's report of January 2000 were done on the assumption that most of the relevant water flows would come from the north-east. In his oral evidence, he expressed the opinion that his conclusions as to area and duration of inundation would not tend to vary significantly if it were to be assumed that the great bulk of the water on Corella in times of flood came from the south-east corner in an east-west direction rather than from the north-east as he had concluded in his reports. I have earlier detailed other conclusions in the January 2000 report in respect of the December 1993 flood and a 2 year ARI 72 hour duration flood.

[133] I have expressed reservations about the usefulness of the modelling used by Mr Abbey. However, whilst not basing my conclusions on them, I think that the calculations and conclusions derived from the modelling provide some measure of support for Mr Abbey's opinions in oral evidence, based on a consideration of "survey reports, the general topography of the area and his professional experience, that any increases in area or duration of inundation on Corella resulting from the levee in the condition it was in at relevant times is quite minor. The evidence of lack of crop damage supports that conclusion as does the fact that the southern edge of the cropped area on Corella is generally higher than the top of the levee bank. Mr Howell accepted this in cross-examination. Mr Howell sought to minimise the consequences of this topographical factor by reference to what he described as a "backwater effect". However, on the question of inundation, I generally prefer the opinions of Mr Abbey to those of Dr Loch and Mr Howell.

[134] Mr Wylie, whose evidence I generally accept in relation to the effect of water and waterlogging on crops, was of the opinion that waterlogging, even for 48 hours or more, will not necessarily affect the yield of dry land crops. The evidence does not establish any significant prolongation of waterlogging by the levee bank to anything approaching that period.

[135] I conclude that the Nolans have not shown that the levee bank in its condition at the commencement of the action or at the time of trial caused or was likely to cause damage on Corella or a substantial degree of interference with the Nolans' enjoyment of Corella.

[136] Nuisance, as alleged by the Nolans, has not been established.

[137] In arriving at this conclusion, I am mindful of the evidence, which I accept, that the levee bank bestows no benefit on Mrs Warne. There is thus no need to balance against the Nolans' claims any conflicting need of Mrs Warne's to divert water from Corella by means of the levee.[32] Mrs Warne's right to do what she likes on her own property and the rights of the Nolans not to be subjected to the consequences of the diversion of water from Winya Park South.[33]

[138] Any prolongation of inundation of Corella at any time after mid-1998 caused by the levee bank was minimal and unlikely to cause any crop damage. There was no prospect of the effect of the levee bank causing appreciable crop damage over a significant area. Furthermore, any likely prolongation of inundation was more likely to be beneficial than harmful. It is also of relevance that the levee bank had been in place for a very long time. If it had any adverse effect on Corella, that effect was contributed to by work done by the Nolans on Corella, the way in which the Nolans farmed Corella and by the creation and clearing of the gap in the trees.

[139] In a rural community, particularly on a flood plain, the normal operation and management of a farm has the potential to adversely affect a neighbour's enjoyment of his or her property. In accordance with the principles of law discussed earlier, the fact that something on or done on one property has an effect on an adjoining property does not necessarily give rise to a cause of action.

[140] Putting it broadly, any interference with the Nolans' enjoyment of Corella resulting from the levee bank in its degraded state is within the range of those matters which in a rural community one neighbour ought be expected to tolerate from another. I am, of course, referring to the impact of the degraded levee bank at times after the Nolans gave notice that its presence was unacceptable to them and after Mrs Warne had had a reasonable time within which to consider the complaint and take action if necessary.

[141] The Nolans consented to the presence of the levee bank and any nuisance constituted thereby by failing to object to the grant and renewal of permits to the levee bank coupled with their actions in repairing it or causing it to be repaired from 1990 to 1995. However, the consent so given was capable of withdrawal and was withdrawn by the Nolans in December 1996.[34]

[142] Consistently with the principles discussed earlier, if the levee constituted a nuisance, Mrs Warne was obliged to remove it within a reasonable time after becoming aware of the harm being caused by it or within reasonable time after she ought to have become so aware. She was entitled to be sceptical of Mr Nolan's claims in December 1996. After all, he had not complained of the levee bank before; he had not opposed the granting or renewal of permits over the years; he had repaired the bank and was resisting her claims for recovery of possession of her land. The levee bank had been in existence for a long time and there is no suggestion that Mr Warne ought to have been aware prior to December 1996 of any potential for it to cause damage to Corella.

[143] In my view, a reasonable time for the taking of action by Mrs Warne could not have expired until she and her advisers had the opportunity of making observations of the interaction between flood waters and the levee bank during a flood and of obtaining expert advice. Mr McLatchey, on behalf of the Department of Natural Resources, advised Mrs Warne that the levee bank was not causing damage to Corella. The letter, however, suggested the removal of the levee bank as it was inconsistent with "best management practices on the flood plain".

[144] The Department prepared a soil conservation plan which involved the removal of the levee bank and forwarded that to Mrs Warne's agents, Sinclair Knight Merz, on 7 July 1998. As the conflicting expert evidence in this case testifies, the question of whether the levee bank constitutes a nuisance admits of no ready answer. I have decided that question against the Nolans. If I am held to be mistaken in that conclusion, I find that Mrs Warne, although not knowing that it was a nuisance, ought reasonably to have become aware of the nuisance by mid-July 1998. By that time Mrs Warne and her appointed expert or experts could have observed the subject area under flood conditions, appropriate investigations could have been conducted, and advice given. Mrs Warne would have been able to have arranged for the removal of the levee bank within thirty days of deciding on its removal. The evidence does not suggest that its removal was beyond Mrs Warne's financial capacity or that she needed any time to arrange finance.

[145] A consequence of the foregoing conclusions is that in order to establish nuisance the Nolans had to show adverse affectation by the levee bank in the condition it was in in July/August 1998. By that time, it had become quite degraded and the erosion complained of had long since commenced. In order to obtain the relief claimed in the statement of claim, the Nolans also had to show at the time of the trial adverse affectation or the likelihood of future adverse affectation, to put the matter broadly. They did not succeed in doing so.

[146] Mr Perry also argued that the levy bank could not constitute a nuisance as it was constructed under the authority of a permit. There is no substance in the point. Apart from any other consideration, the terms and conditions of the permit were not complied with at any material time.

[147] It was announced by Mr Perry after the trial resumed in November 2000 that Mrs Warne had caused the east-west arm of the levee bank to be removed and would remove the north-south arm as soon as cropping and weather conditions permitted. The pleadings were amended accordingly.

[148] The Warne's have thus not succeeded on their counter-claim and I order that there be judgment for the defendant by counter-claim. I will hear submissions on costs.

[1] (1995) Aust Torts R 81-329; (1995) 86 LGERA 312.

[2] [1962] HCA 27; (1962-1963) 108 CLR 12 at 48-49.

[3] Windeyer J in Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40 at 59 quoting from Winfield on Tort, 6th ed (1954) p 536.

[4] Munro v Northern Dairies Ltd (1955) VLR 334-5 and 34 Halsbury's Laws of England, 4th ed par 312.

[5] Oldham v Lawson (No 1) [1976] VicRp 69; [1976] VR 654 at 655.

[6] Harrison v Southwark and Vauxhall Water Co [1891] 2 Ch 409 at 414.

[7] Harris v Carnegie's Pty Ltd [1916] ArgusLawRp 115; [1917] VLR 95.

[8] (1971) 1 SASR 359 at 367.

[9] Hazelwood v Webber [1934] HCA 62; (1934) 52 CLR 268; Gardiner v Miller (1955) 56 SR (NSW) 122; Bell v Pitt [1956] TASStRp 23; [1956] TasSR 161; Wilson v Waddell (1876) 2 AppCas 95.

[10] Bell v Pitt [1956] TASStRp 23; [1956] TasSR 161 at 181.

[11] Sedeleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 904-5.

[13] [1968] Ch 605.

[19] [1978] 1 QB 849.

[20] [1958] 1 QB 60.

[21] [1966] UKPC 2; [1967] 1 AC 645; (1966) 115 CLR 458.

[22] [1979] EWCA Civ 5; [1980] 1 QB 485.

[23] [1963] HCA 56; (1963) 110 CLR 40.

[25] [1926] 2 KB 332.

[26] [1940] HCA 1; (1940) 62 CLR 637.

[28] (1971) 1 SASR 359.

[29] Halsbury's Laws of England 4th ed para 377_; Pwllbach Colliery Co Pty v Woodman_ [1915] AC 634 at 638_; Lyttelton Times Co Ltd v Warners Ltd_ [1907] UKPC 47; [1907] AC 476; Law of Torts by Balkin and Davis p 471_._

[30] [1915] AC 634.

[31] Clark and Lindsell on Torts - 16th ed para 1-135; Ross v Associated Portland Cement Manufacturers [1964] 1 WLR 768 at 777.

[32] Bayliss v Lea [1961] NSWR 1002.

[33] Sedleigh-Denfield v O'Callaghan [1940] UKHL 2; [1940] AC 880 at 963.

[34] Precision Service Centre v Banstead (1985) 3 BPR 9626 [BC 8500 959].